Wtlson v. Otis

• Decision Date: 07 October 1902
• Citation: 71 N.H. 483,53 A. 439
• Parties: WTLSON et al. v. OTIS et al.
• Court: New Hampshire Supreme Court

53 A. 439

71 N.H. 483

WTLSON et al.

v. OTIS et al.

Supreme Court of New Hampshire. Strafford.

Oct. 7, 1902.

Transferred from superior court; Wallace, Judge.

Probate appeal by Henry Wilson, administrator, and others, from decree of distribution of the estate of George W. Otis. The other parties were A. D. Otis and others. The question of the legality of an adoption was transferred. Case discharged.

In the probate decree the defendants, who are brothers and sisters of the intestate, were recognized as his heirs, and as such entitled to the entire estate, subject to the widow's rights therein. The appeal was taken by Wilson, administrator, the widow, and Arthur H. Edgerly or Otis, who claims to be the adopted son of the intestate, and who, if legally adopted, is the only heir, and, with the widow, is entitled to the entire estate. Arthur is the son of William A. and Sarah F. Edgerly, and the legality of his adoption depends upon the effect to be given the record of the probate court in relation thereto. The petition to the probate court was dated January 14, 1882, was signed by Otis and wife, and alleged that "Arthur H. Edgerly, of Wolfeborough, in the county of Carroll in said state, is the child of William A. Edgerly and Sarah F. Edgerly, his wife, and a minor, nine years of age; that they desire to adopt said child as their own; that they are of sufficient ability to bring up said child, and furnish suitable nurture and education, having reference to the degree and condition of its parents; that the father of said child has consented in writing to such adoption; the mother, Sarah F. Edgerly, having been divorced from her said husband, William A. Edgerly, at a term of the supreme court holden at Ossipee, within and for said county of Carroll, on the third Tuesday of October, 1881; and that in her said petition for divorce no prayer was inserted for the care, custody, or control of said Arthur H. Edgerly." The consent of the child's father to the adoption was indorsed upon the petition. At Rochester, on January 17, 1882, the probate court made the following decree of adoption: "State of New Hampshire Strafford—ss.: At a court of probate held at Rochester, in said county, on the 17th day of January, A. D. 1882, on the petition of George W. Otis and Addie F. Otis, both of Farinington, in said county, praying for leave to adopt as their own child Arthur H. Edgerly, of Wolfeborough, in our county of Carroll, the child of William A. Edgerly and Sarah F. Edgerly, and that a decree to that effect may be made, it appearing to the court that said Arthur H. Edgerly is the child of said William A. Edgerly and Sarah F. Edgerly, and is under fourteen years of age, and that said ——, the parents of said child, having consented in writing to such adoption; and the court being satisfied of the identity and relations of the persons, and that the petitioners are of sufficient ability to bring up said child, and furnish suitable nurture and education, having reference to the degree and condition of its parents, and that it is fit and proper that such adoption should take effect: It is therefore decreed that the said —— have leave to adopt said child as h— own child, and that the name of said child be changed to ——, and it is hereby ordered that from the date hereof said child shall, to all legal intents and purposes, be the child of the said ——, and shall hereafter have the name of——. J. D. Young, Judge of Probate." The record entry is as follows: "Jan. 17, 1882. Probate Court. 5,393. Wolfeborough. Docket at Rochester. Arthur H. Edgerly. Pet. of George W. Otis and Addie F. Otis for leavt to adopt." No other record of the adoption appeared on the probate records, nor was the petition, or decree, or any other papers in reference to the matter, filed in the probate office. About January 1, 1882, the boy, who was then about nine years old, went to live with Mr. and Mrs. Otis, taking the name of Arthur E. Otis, and bearing the same until after the death of Mr. Otis, when, the legality of his adoption being questioned, he resumed the name of Arthur H. Edgerly. They treated him as their adopted son, supporting and educating him, and they believed him to be such as long as Mr. Otis lived. The boy treated them as his adopted parents, and believed them to be such, up to the time of Mr. Otis' death, in 1897. At that time it was discovered that the petition and decree of adoption were not on file in the probate office. They were afterward found in a lawyer's office in Rochester, where they had been for many years, and were thereupon returned to the files. The question of the legality of the adoption was transferred.

Leslie P. Snow, for plaintiffs.

James A. Edgerly, for defendants.

WALKER, J. Whether the administrator is a necessary party does not seem to be of importance in this case, and is not considered, since the widow and Arthur H. Edgerly or Otis on the one side, and the next of kin to the deceased on the other, are proper parties having a direct pecuniary interest in the distribution of the estate. The question raised by the case is whether the defendants are entitled to inherit a part of the estate, and this depends upon the question whether Arthur was legally adopted by the deceased. If he was legally adopted, it is conceded that he would inherit the estate, subject to the widow's rights, and to the exclusion of the defendants. Gen. Laws, c. 188, § 4. Their contention is that there was no valid judgment or decree of adoption by the probate court, in which the deceased entered a petition for that purpose. It is found as a fact that upon that petition the judge of probate did judicially what the imperfect document signed by him, upon a reasonable construction thereof, shows he did. If, upon competent evidence, it appears that the court, having jurisdiction of the subject-matter, determined the issue or point presented by the petition, the parties are concluded thereby. Whether the judgment was actually entered up in the technical form of a decree is not material in this collateral proceeding. Nihan v. Knight, 56 N. H. 167. Did the court grant the prayer of the petition? It appears from the record that the court, presumably upon competent evidence, found certain facts which were essential to a decree of adoption. Gen. Laws, c. 188, § 3. These facts are expressly recited in the signed document, which, taken in connection with the...